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Alberta law: Discoverability

Limitations law can be complex. The principal of discoverability says you should bring a lawsuit within a certain time after you know or ought to know of a loss and who is responsible for it. If you don't you can lose your ability to sue.

In a recent decision of Milota v. Momentive Specialty Chemicals 2020 ABCA 413 the Alberta Court of Appeal looked at discoverability. The Court said at 21:

[21] A limitation period will start to run “once the plaintiff ‘ha[s] access to all of the facts required to determine that they had a cause of action’”: Canadian Natural Resources Limited v Husky Oil Operations Limited, 2020 ABCA 386 at para 33 [Canadian Natural Resources Limited], citing Luscar Ltd v Pembina Resources Limited, 1994 ABCA 356 at para 138, [1995] 2 WWR 153. Mere suspicion is not sufficient to trigger a limitation period; the plaintiff can be said to have “known” of her injury only when she has some support for her suspicion: Stack v Hildebrand, 2010 ABCA 108 at para 14, citing TP v AP, 1988 ABCA 352 at para 26, 54 DLR (4th) 372; Geophysical at paras 19-21.

[22] Alternatively, the limitations clock starts when the material facts ought to have been discovered by the plaintiff by the exercise of reasonable diligence: Hill v Alberta (Registrar of Land Agents), 1993 ABCA 75 at para 8, citing Central Trust v Rafuse, 1986 CanLII 29 (SCC), [1986] 2 SCR 147, 31 DLR (4th) 481. While the latter test is primarily objective, courts may consider aspects of the plaintiff’s circumstances in determining whether a reasonable person would conclude proceedings were warranted in Alberta: Yugraneft Corp v Rexx Management Corp, 2010 SCC 19 at paras 60-61, [2010] 1 SCR 649. A defendant’s statements, actions or omissions can affect a plaintiff’s state of knowledge and duty to inquire: Canadian Natural Resources Limited at paras 34-36; James H Meek, Jr Trust v San Juan Resources Inc, 2005 ABCA 448 at para 33; Geophysical at para 27.

As mentioned, limitations issues are tricky. If you believe you may have a limitation period, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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